UNLAWFUL DETAINER Motion to Set Aside

1 UNLAWFUL DETAINER Motion to Set Aside How to Guide Self-Help Legal Access Centers March 2019 Santa Monica 1725 Main St., Room 210 Santa Monica, CA 90401 Inglewood 1 East Regent St., Room 107 Inglewood, CA 90301 Torrance 825 Maple Ave., Room 160 Torrance, CA 90503 Long Beach 275 Magnolia Ave, Room 3101 Long Beach, CA 90802 This guide is designed to help you fill out the forms yourself. It is not intended to provide legal advice nor strategy as to how to complete the case. The information provided in this packet only presents options and examples. This is not a substitute for professional legal advice from an attorney. 2019 Legal Aid Foundation of Los Angeles 1 INFORMATION AND INSTRUCTIONS What is a Default Judgment? A Judgment is the final Court order which states who won the case and what they won.

2 If you did not file a response (answer) or appear at trial, the Court enters a Default Judgment . The Default prevents you from filing a response. Also, if you filed your answer, but did not appear at court, then a default judgment (or prove up ) was entered against you. If you have a Default Judgment against you, it means: a. You lost your UNLAWFUL DETAINER /eviction case automatically. b. A money judgment is entered against you for 7 to 10 years and can be renewed indefinitely. c. In eviction cases, the court record is sealed until Judgment is entered against the Tenant. After the Default Judgment, the court record may become unsealed (or available to the public) even if a Judgment is entered for a zero ($0) dollar amount: 1) Your name and the case name will be entered onto a Tenant Registry, and will stay there for 7 years.

3 Future landlords can check this registry to help them decide whether to rent to you. 2) The Judgment shows up on your credit report for 7 years. Your wages or bank accounts may be garnished or levied. 3) The Judgment may also negatively impact your credit score making it difficult to borrow money or even get certain jobs. d. The Plaintiff enforces the Judgment by obtaining a writ of possession , which is the Court s order allowing the Sheriff to post a Five (5) Day Notice to Vacate and evict you from your home. Can you Vacate ( Cancel ) the Judgment Against You? You must show that something beyond your control prevented you from filing a timely Answer to the Summons and Complaint or something beyond your control prevented you from attending your trial. You must meet one of the following legal requirements to set Aside a default and vacate a Judgment, so not everyone qualifies: a.

4 You Were Not Served the Summons and Complaint or were not served properly. It does not matter if you had actual notice (somehow got the papers) or if you avoided service. Proper service does not require that a defendant sign for papers. b. Mistake, Surprise, Inadvertence, and/or Excusable Neglect-You must show a mistake, surprise (something unexpected happened that was not your fault), or inadvertence or excusable neglect (you failed to do something but have a reasonable excuse). For example, you did not respond in time to the Court papers because the Plaintiff tricked you into not filing an answer or you failed to go to court because you became sick and were in the hospital. The Court may also consider fraud as a reason if it caused you to make a mistake or caused surprise, inadvertence or excusable neglect.

5 Your acts have to be those that a reasonable person in your position would have done and could not have been reasonably avoided; c. Judgment is Unjust or does not comply with the Law due to Fraud or Mistake- The Court has power on its own to correct or change its orders if they do not comply with the law or are unjust. You must show: 1) someone committed fraud against you or caused your mistake, either of which caused you to not respond and/or go to Court; or 2) the Court clerk made a mistake. d. Papers Were Properly Served by Law, But Not Received or Seen in Time to Defend the Case-The initial papers (the Summons and Complaint ) were served as required by law, but you did not have actual notice of them meaning you did not receive them or see them yourself in time to file a response.

6 For example, they were given to someone else at your home but that person never gave them to you and you did not get a copy by mail or another way. This reason to set Aside a judgment is only available for Defaults and Default Judgments. You must show that you did not avoid service or otherwise cause the lack of notice; 2 HOW TO FILE A Motion TO SET Aside A JUDGMENT AND HAVE THE COURT HEAR YOUR CASE! (1) Obtain and Review Court Documents Summons and Complaint Proof of Service of Summons Notice of Entry of Default Judgment (2) Prepare the Required Court Papers Ex Parte Application for Stay of Execution See Companion Packet See the instructions for how to fill out the Ex Parte Application for Stay of Execution. Motion to Set Aside a Judgment 1. Notice of Motion and Motion -This tells the other party the date, time and courtroom in which the Motion will be heard, as well as the reason(s) you are filing the Motion .

7 2. Memorandum of Points and Authorities-This document explains the laws in your case and how the facts of your case meet the requirements of the laws. 3. Declaration-The declaration explains the facts of your case, specifically the reason(s) you did not respond to the complaint and/or did not attend the court trial and why you meet the legal requirements of the Motion . 4. Proposed Order-This is the order for the Judge to fill out and sign if your Motion is granted. You only need to fill out the 1st page, the 2nd page is for the Judge. Proposed Answer to the UNLAWFUL DETAINER (If not filed already) If you are filing the Ex Parte Stay application and the Motion to Set Aside because you missed your court date, you do not have to file a proposed Answer at the same time. If you are filing based on another reason, you must file a Proposed Answer, and the Court will consider whether you have any defenses to the Complaint and a reasonable chance of prevailing at trial.

8 The general idea is that even if something happened that prevented you from filing your Answer or attending your trial, there s no point in granting your motions if you have no chance of winning at trial. See the instructions for how to fill out the Answer (UD 105/Attached 3k) See Companion Packet Fee Waiver. Forms FW-001 and FW-003. (If not filed already) The court will charge a filing fee unless you qualify and file a fee waiver. (3) Make Copies Make 2 copies of the both the Ex Parte Application and Motion to Set Aside papers (and copies of the Proposed Answer if required to file one.) You should then have 3 sets: 1 set of Originals and 2 sets of copies, one for you and one set for the Plaintiff. 3 (4) Filing the Motion to Set Aside with the Court: File the original Ex Parte Application and the Motion to Set Aside (including Proposed Answer attached) with the 2 copies with the Court Clerk.

9 The Court keeps the original documents, stamps your copies with the date and time and returns the two copies to you. Keep in mind the filing & court hearing times. THESE TIMES MAY BE DIFFERENT FOR EACH COURTHOUSE IN THE COUNTY. (5) Service of the Landlord s copies You may serve the copies in Court when you appear for your hearing unless the Judge orders you to serve them in another manner. (6) Hearings on Motions Be on time for your hearing! If you arrive late, the Court may have already called your case and made a decision without you. Bring copies of all your documents! When you arrive, check in with the Court clerk inside the courtroom and wait for your case to be called. You may consider speaking with the other side before the hearing to work out an agreement or settlement that makes sense to you before the matter is called.

10 The Court may choose to combine your hearings on the Ex Parte Application for the Stay and on the Motion to Set Aside on the day you file them or may choose to grant your Ex Parte Application for a Stay but set the hearing on the Motion to Set Aside on another date. The Court usually makes a decision by reviewing the papers filed in the case. You probably will not be able to speak unless the judge asks you questions, but be ready to explain your request anyway. Just in case the Judge wants to hear from you, prepare some notes or index cards of topics that you want to talk about. Keep it clear, short and concise. NO RAMBLING ON. If public speaking makes you uncomfortable, consider writing out what you want to say on a note pad so that you can refer to your notes in case you get nervous.